What is custody?
Custody is the physical care and supervision of a child under 18 years of age. When you get a custody order from a court, it will address these two types of custody:
Physical custody describes who the child lives with on a day-to-day basis.
Legal custody describes who has the right and responsibility for major decisions concerning the child. Some of those decisions include:
- where the child goes to school;
- what kind of healthcare the child receives; and
- what religious training the child attends.
What options are there for legal custody?
When a parent has sole legal custody, one parent has the right and responsibility to make all of the major decisions affecting the child’s life.
When parents have joint legal custody, the parents share the decision-making. The decision-making isn’t always shared equally - a judge can give one parent power to make certain decisions by herself while both parents have equal rights and responsibilities for other decisions.
Joint legal custody works best when both parents are able to put aside their differences and plan together for the welfare of the child. It is often very difficult to share these rights and responsibilities when one parent has abused the other.
What options are there for physical custody?
Sole physical custody is when the child lives with only one parent on a day-to-day basis.
Joint physical custody is when there is an approximate and reasonable equal division of time with the child by both parents - this can either be agreed to by the parents or ordered by the judge.1 It does not necessarily mean the child spends equal amounts of time with each parent. The child spends blocks of time with each of the parents, who share the right and responsibility to raise the child in their home. Each parent has more than simple visitation privileges.
Like joint legal custody, joint physical custody works best when both parents are able to put aside their differences and plan together for the welfare of the child. It is often very difficult when one parent has abused the other.
1 A.C.A. § 9-13-101(a)(5)
What is joint custody? Is joint custody favored in Arkansas?
Joint custody is defined as the “approximate and reasonable equal division of time with the child by both parents.”1 Joint custody is favored in Arkansas and there is a “rebuttable presumption” that joint custody is in the best interest of the child. This means that the judge will assume (presume) that joint custody is what’s best for the child but either parent can offer evidence to change the judge’s mind (to “rebut” the presumption). The judge can decide not to order joint custody if one of the following are true:
- The judge determines that there is “clear and convincing evidence” that joint custody is not in the best interest of the child;
- The parties come to an agreement on all issues related to custody of the child and decide upon their own custody terms;
- One of the parties does not request sole, primary, or joint custody; or
- One of the parties offers evidence that convinces the judge to “rebut” the presumption and give one parent sole custody.2
If, at any time, the judge determines that one parent has a pattern of intentionally creating conflict in an attempt to disrupt a current or pending joint-custody arrangement and there is nothing the judge can order to reduce areas of conflict caused by the disruptive parent, the judge can consider such behavior to be a “material change of circumstances” and can change a joint custody order to an order of primary custody to the non-disruptive parent.3
1 A.C.A. § 9-13-101(a)(5)
2 A.C.A. § 9-13-101(a)(1)(A)(iii), (a)(1)(A)(iv)
3 A.C.A. § 9-13-101(b)(1)(A)(iii)
What are some pros and cons of filing for custody?
There are many reasons people choose not to get a custody order from a court. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents may think going to court will provoke the other parent, or they are worried that the other parent might get custody or visitation.
However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
- The right to make decisions about your child
- The right to physical custody of your child (to have your child live with you)
Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent that takes care of the child every day. If you are married and there is no custody order, both parents have equal custody rights until a court order awards custody to one of the parents. If the parents have never been married and there is no custody order, the mother of the child has legal custody by law.
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to AR Finding a Lawyer to seek out legal advice.